An individual may have a property interest in a research or faculty position, particularly when the expectation of continued employment is explicitly granted by tenure or contract.28 Moreover, a government debarment action or the suspension of research funds might be seen as deprivations of a property or liberty interest. If so, government investigations must follow stringent procedures to minimize erroneous findings and meet the requirements of due process. However, less severe penalties, such as a letter of reprimand or a requirement of prior approval for particular activities, are probably not deprivations of constitutionally protected interests. While these sanctions might injure a scientist's reputation, such injury, absent a change in job status, is not recognized by the Supreme Court as a deprivation of a constitutionally protected interest.29
The Supreme Court has developed a balancing test to determine specific procedures that must be employed before an individual may be deprived of a constitutionally protected property or liberty interest.30 On the side of the accused the Court weighs the importance of the liberty or property interest at stake and the extent to which the procedure at issue may reduce the possibility of erroneous decision making. On the other side, the Court considers the government's interest in not increasing its administrative and fiscal burdens.
Constitutionally required procedures are defined by a balancing process, and detailed requirements emerge through case decisions. Although constitutional protections apply only to actions by the government (i.e., a funding agency or a state university), the need for a fair process applies to any resolution of a case alleging misconduct in science. In order to accord with the principles of fairness embodied in due process, procedures for resolving misconduct-in-science cases probably should contain the following elements:31
A clear specification of what constitutes misconduct, as well as the possible sanctions.
Assurance that when misconduct in science is alleged or suspected, an initial inquiry will be made to determine if a hearing32 is warranted. This inquiry should remain confidential in order to protect the reputation of the accused from groundless or trivial charges. It is not necessary to notify the accused or the research sponsor of the inquiry.
Stipulation that if the evidence gathered from the initial inquiry warrants a hearing, notice will be given to the accused and the research sponsor of the charge and of the conduct or transaction(s) on which it is based, as soon as possible, consistent with the protection of evidence, particularly in potential criminal cases.